February 18, 2015

Exhausting

Helferich licensed relevant portions of its patent portfolio to mobile
handset manufacturers. Then it turned around and sued content providers that
feed users through their handsets. In a whitewash ruling, Judge John W. Darrah
of Illinois district court found non-infringement via exhaustion. A CAFC panel (2014-1196)
reversed that sloppiness, noting that the lower court "did not focus on the
particulars of any of Helferich's claims." "We see no sound basis for expanding
exhaustion doctrine to hold that authorized sales to persons practicing the
handset claims exhaust the patentee's rights to enforce the asserted content
claims against different persons."

February 2, 2015

Clear Error

The CAFC has long internally fretted about its self-indulgence of de novo
review in claim construction, which is a legal interpretation of technical
facts. In Teva v. Sandoz, the Supreme Court settled that score.

When reviewing a district court's resolution of subsidiary factual matters
made in the course of its construction of a patent claim, the Federal
Circuit must apply a "clear error," not a de novo, standard of
review.

January 17, 2015

Willful

In Bard v. Gore (CAFC
2014-1114), the CAFC abandons all pretense of equitable rule of law by
ignoring its own precedents and exercising biased caprice. In dissent, Judge
Newman sharply points this out.

This case returns to the Federal Circuit on appeal of a district court
decision on remand from an en banc decision of this court. The issue is
willful infringement and its consequences, which this en banc court remanded
for de novo determination as a matter of law, vacating the judgment entered
on the jury verdict.

The panel majority, while mentioning that willful infringement is now a
matter of law, does not undertake the required de novo review... In all
events, the question as it relates to willfulness is whether the defense of
invalidity could reasonably be raised, not whether it eventually
succeeded... On the entirety of the premises and applying the correct legal
standards, the judgment of willful infringement cannot stand.

Extensive precedent supports judicial refusal to enhance damages when the
case is close and the equities counsel moderation, not punishment... Thus,
regardless of whether willfulness was a supportable ruling, the doubling of
the damages award is untenable.

December 26, 2014

Not Withdrawn

Prosecutorial nitwittery went unchecked by the district court, but a CAFC
panel checked it by siding with the USPTO in refusing to withdraw a terminal
disclaimer.
6,194,187 issued. Its owner, the Japanese Foundation for Cancer Research,
then filed a terminal disclaimer, which the PTO accepted. The patent office
later refused to withdraw the disclaimer, and so was sued for it. Defending the
PTO via deference, the CAFC found "that the PTO did not act arbitrarily, act
capriciously, or abuse its discretion in declining to use any inherent authority
that it might have in withdrawing the terminal disclaimer."

Scanned

The death watch for software under §101 continues. In Content
Extraction and Transmission v. Wells Fargo et al (CAFC
2013-1588), patents that claim scanning a document and recognizing certain
keywords are damned as an "abstract idea," using oxymoronic pseudo-logic that
"the concept of data collection, recognition, and storage is undisputedly
well-known." Asserting software patents against the cossetted financial sector
is itself the kiss of death. The corruption of the patent system via court fiat
is largely complete, the grim reapers in black sitting on benches in dead-end
jobs having triumphed as the lords of plutocratic benevolence, giving away the
meager inventions of the meek to corporate behemoths.

December 10, 2014

Horrid Host

DDR Holdings v. Hotels.com illustrates the incompetence and caprice
of Federal courts in handling patent cases. Asserted claims in
6,993,572 &
7,818,399 were found valid and infringed by a jury. District court Judge
Rodney Gilstrap in East Texas rebuked motions as a matter of law (JMOL) over
invalidity and infringement. On appeal, '572 was found blatently anticipated by
the prior art. An extensive CAFC sidebar on §101 shows how unsettled patentability is.

November 23, 2014

Bad Injector

"Antares is a developer of automatic injection devices used to
self-administer pharmaceuticals." It got a patent (7,776,015)
that it wanted broadened under reissue (35 U.S.C. § 251), as it had not bothered
to file a continuation. Owing to prosecutorial and patent office incompetence,
the reissue claims went to a different invention. Asserted in litigation, the
CAFC caught the reissue error (district court Judge Sue L. Robinson did not) and
pitched the patent (CAFC
2014-1648).

Stay

Verstata asserted software patents against rival Callidus, which
counterclaimed with its own patents. Callidus filed limited reexamination
proceedings against the Verstata patents, and asked the court for a stay pending
reexam. The district court denied the stay. The CAFC reversed that.

November 17, 2014

Not So Wild Tangent

Ultramercial sued Hulu and WildTangent for infringing
7,346,545, which claims receiving payment for a consumer viewing Internet
advertising. The district found the patent invalid under § 101. The CAFC balked
at that, but reversed itself after the Supreme Court Alice ruling (CAFC
2010-1544). "We do
not purport to state that all claims in all software-based patents will
necessarily be directed to an abstract idea," the court stated. But since Alice, not one has yet to pass muster.

November 10, 2014

Wrong Address

Texas gets a lot of patent cases, but the judges there are as incompetent as
in the rest of the country. In Azure Networks v. CSR, East
Texas Judge
Michael H. Schneider got bamboozled into an ersatz claim construction for
"MAC address" during an assertion of
7,756,129, claiming a personal network device. Based upon two brief
descriptive passages, the district court decided that the patentee had acted as
its own lexicographer. On appeal (CAFC
2013-1459), a CAFC panel pointed out how stupid Judge Schneider was: "The
statements in the specification relied upon by the district court neither define
'MAC address' nor exclude universal addresses. Nothing in the specification or
the prosecution history shows an attempt to distinguish over prior art."

October 22, 2014

Obvious After the Fact

A petition for rehearing en banc at the CAFC for a drug obviousness case (Bristol-Myers
Squibb v. Teva - CAFC
2013-1306) was denied. What was remarkable was the inane confusion at the
court. Judges Dyk and Wallach stated that "post-invention evidence" is rightly
not allowed in considering obviousness. As Judge Newman observed: "Precedent is
clear that the information and comparative data presented as evidence of
nonobviousness need not have existed before the patent application was filed,"
noting the secondary consideration of commercial success, and citing several
instances where evidence of unexpected results found later were considered
relevant to obviousness. The CAFC continues to be an inexcusably pathetic excuse
for a patent court: creating self-contradictory precedent and thereby failing
to provide guidelines that the patent office and patent community may reasonably
rely upon.

October 17, 2014

No Means

Robert Bosch sued Snap-On for infringing
6,782,313, which claims a motor vehicle diagnostic tester. Alas, the tester
had no specification support for a testing device. The courts found
insufficiency under 35 U.S.C. § 112, ¶ 6, even though there was no explicit
"means for" element. Another stupid patent assertion with another stupid
patent bites dust. (CAFC
2014-1040). But then,
Robert
Bosch is a German company, and their nickel-slick lawyers got paid
regardless.

October 12, 2014

Bad Medium

EMD Millipore sued Allpure over its device to put "a medium" into and get out
of a jar (6,032,543).
It lost in summary judgment, for noninfringement, owing to prosecution estoppel.
It's easy to tell how lame the assertion was when the claim construction
argument went to the meaning of the term "removed."
Hamilton, Brook, Smith & Reynolds represented
the plaintiff. One can only wonder whether they saw it coming, as they should
have. (CAFC
2014-1140)

August 27, 2014

Not Bingo

Planet Bingo got patents for a computer managing a game of bingo, starting
with parent
6,398,646. It assertion against VKGS lasted only until summary judgment,
where all claims were found patent ineligible under § 101. Like Alice
and Bilski, there is no bingo no more for patents claiming to "organize
human activity." The courts consider that too abstract. Speaking of abstraction,
try this on for gibberish: "Abstract ideas may still be patent-eligible if they
contain an "'inventive concept' sufficient to 'transform' the claimed abstract
idea into a patent-eligible application."" Sounds like organizing case law into
coherency ought to be patentable, as it would be novel. (CAFC
2013-1663).

August 16, 2014

Inequitable Conduct

The district court and CAFC found Dr. Bernard Charles Sherman, founder and chairman of Apotex, guilty of inequitable conduct in his patenting of an antihypertensive claimed in 6,767,556. "Dr. Sherman breached his duty of candor, good faith, and honesty before the PTO." Typical CEO behavior, especially in the big leagues. But then, Dr. Sherman was just another crooked player in a very crooked game. Abusing the law is bread-and-butter business for Federal judges, particularly when patents are asserted by small fry against corporate giants.

Collaborative Filtering

I/P engine sued Google, Target, and Gannett (a media conglomerate)
over
6,314,420 & continuation
6,775,664. Judge and jury at district court found the patents infringed, and
neither anticipated nor obvious. As these were major U.S. corporations, there was
no way that those decisions would be upheld on appeal. Sure enough. The
CAFC panel majority agreed with Google that "as a matter of law [the claimed
invention] simply combines content-based and collaborative filtering, two
information filtering methods that were well-known in the art." To rub it in the
noses of unreasonable citizens who waste their time on jury duty: "no reasonable
jury could conclude otherwise." In concurrence, Judge Mayer thought the
claims "fall outside the ambit of 35 U.S.C. § 101."

August 11, 2014

Unscripted

In ScriptPro v Innovation Associations, the district court rightly
granted summary judgment of invalidity for
6,910,601 under 35 U.S.C. § 112(a) because the claims left out sensors that
were disclosed as essential, and otherwise the claimed invention simply could
not work. Ignoring the facts particular to the technology, the CAFC reversed (2013-1561),
blithely stating that "it is common, and often permissible, for particular
claims to pick out a subset of the full range of described features, omitting
others."

July 13, 2014

§101 Profile

6,128,415 claims a device profile to rid digital image distortion. The
courts found it patent ineligible for being an abstraction. The CAFC
(2013-1600): "For all categories except process claims, the eligible subject
matter must exist in some physical or tangible form." The noose tightens on
patenting software.

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"A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." - SCOTUS in KSR, 2007 -

"Words ought to be a little wild, for they are the assault of thought on the unthinking." - John Maynard Keynes -

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